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Wednesday, June 13, 2012

One to Watch! Right to Reside in a Member State

Advocate General
Verica Trstenjak last week issued her opinion in the case of Yoshikazu Lida v
Stadt Ulm. Relying on the Charter of Fundament Rights, the Advocate General found
that EU law can confer a right of residence on a third-country national parent,
where that parent has custody rights and where his child has moved with the
other parent to another Member State.

In this case, Mr
Lida, a Japanese national, married and had a child with a German national. From
2005, the family resided in Germany where Mr Lida was granted a residence
permit on the basis of his marriage to an EU national. In 2008, Mr Lida’s wife
and child moved to Austria and the couple separated.

The issue then
arose as to whether Mr Lida retained an entitlement to a right to reside in
Germany on the basis of his status as a family member of an EU national. The
German authorities refused his initial application to reside. The German court
subsequently referred the case and asked the Court of Justice whether under EU
law, a parent with a right of custody but who is a third-country national, has
a right to reside in the EU Member State that is the origin of his child (who
is an EU citizen), so as to maintain regular parental contact with that child,
who has exercised free movement and resides in another EU Member State.

AG Trstenjak
found that neither the Free Movement Directive nor the caselaw of the Court of
Justice confers any such right of residence on the third-country national.

However, the
Advocate General then considered the protections of the Charter of Fundamental
Rights. The Charter protects the right of the child to maintain a personal
relationship and direct contact with both parents and to respect for family
life. If the third-country national parent was denied the right to reside, this
may potentially deter his child from further exercising her right to free
movement as an EU citizen and therefore be contrary to EU law. The extent to
which such free movement would be deterred falls to the local court to
determine.

The reliance
here on the Charter of Fundamental Rights is of note and suggests that the now
binding Charter may ground expanded free movement protections for third-country
nationals within the EU, particularly with respect of family life. We will
await with interest the Court’s ultimate determination and will keep you
updated.